Opposition — Avcollie v. Connecticut

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No. 82-1460 | APR 16 1983

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IN THE

Supreme Court of the Anited States

October Term, 1982

BERNARD AVCOLLIE,

Petitioner

v.

STATE OF CONNECTICUT,

Respondent.

On Writ of Certiorari to The Supreme Court of the

State of Connecticut

RESPONDENT'S BRIEF IN OPPOSITION TO

THE PETITION FOR A WRIT OF CERTIORARI

FRANCIS M. MCDONALD

State's Attorney and Counsel of Record

CATHERINE J. CAPUANO

Special Assistant State’s Attorney

300 Grand Street

Waterbury, CT 06702

P.O. Box 1245

(203) 756-4431

ee —_

QUESTIONS PRESENTED

1. Whether the trial court's quashing of the grand juror subpoenas

requires the granting of certiorari?

2. Whether the trial court's charge concerning intent requires the

granting of certiorari?

3. Whether the trial court's charge concerning sanity requires the

granting of certiorari?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT: Reasons for Denying the Writ

I, The Trial Court's Quashing of the Grand Juror

Subpoenas Does Not Require the Granting of

Certiorari

II, The Trial Court's Charge Concerning Intent Does

Not Require the Granting of Certiorari

III. The Trial Court's Charge Concerning Sanity Does

Not Require the Granting of Certiorari

CONCLUSION

APPENDIX

Page

to

12

16

19

TABLE OF AUTHORITIES

CASES Page

Calvo v. State, 313 So.2d 39 (Fla. Dist. Ct. App. 1975) 11

Castaneda v. Partida, 430 U. S. 482 (1977) 12

Connecticut v. Johnson, —U. S.—, 103 S.Ct. 969 (1983) 14

Dykman v. State, 294 So.2d 633 (Fla. 1974) 11

Gagne v. Meachum, 602 F.2d 471 (1st Cir. 1979) 15

Hernandez v. Texas, 347 U.S. 475 (1954) 12

In Re Winship, 397 U.S. 358 (1970) 18

Leland v. Oregon, 343 U.S. 709 (1952) 6,17

Melnerney v. Berman, 473 F. Supp. 187 (D. Mass. 1979 ) 15

Patterson v. New York, 432 U.S. 198 (1977) 18

People v. Estrada, 93 Cal, App. 3d 76, 155

Cal. Rptr. 731 (Cr. App. 1979) 12

Rivera v. Delaware, 429 U.S. 877 (1976) 6, 17

Rojas v. State, 288 So.2d 234 (Fla. 1973) 11

Rose v. Mitchell, 443 U.S. 545 (1979) 11

Sandstrom v. Montana, 442 U.S. 510 (1979) 6, 13, 14, 15

State v. Avcollie, 178 Conn, 450, 423 A.2d 118 (1979) 15,16

State v. Avcollie, 188 Conn. 626, 453 A.2d 418 (1982) 2, 15,17

State v. Conte, 157 Conn. 209, 251 A.2d 51 (1968) 18

Ulster County Court v. Allen, 442 U.S. 140 (1979) 14, 16

United States v. Chiantese, 582 F.2d 974 (Sth Cir. 1978) 15

United States v. Garrett, 574 F.2d 778 (3d 1978) 15

United States v. Guzman, 337 F. Supp. 140 (S.D.N.Y.1972) 11

Villafane v. Manson, 504 F. Supp. 78 (D. Conn. 1980) 12

STATUTES

Conn. Gen. Stat. § 53a-13

iii

6,17

No. 82-1460

IN THE

Supreme Court of the Cnited States

October Term, 1982

BERNARD AVCOLLIE,

Petitioner

STATE OF CONNECTICUT,

Respondent,

On Writ of Certiorari to The Supreme Court of the

State of Connecticut

RESPONDENT'S BRIEF IN OPPOSITION TO

THE PETITION FOR A WRIT OF CERTIORARI

This brief is submitted in opposition to a petition for a writ

of certiorari to review the judgment of the Supreme Court of the

State of Connecticut entered in this proceeding on December 14,

1982.

STATEMENT OF THE CASE

I,

The defendant, a white male, was indicted for murder by a

grand jury on November 21, 1975 and moved to dismiss his in-

dictment before trial. During the hearing on that motion, his

attorney subpoenaed the entire grand jury panel in an effort to

question cach of them about their grand jury service. The trial

judge quashed the subpoenas because the defendant's attorney

failed to make a showing that their testimony was required or rele-

vant. State v. Aveollie, 188 Conn. 626, 629, 633-36, 453 A.2d

418, 420, 422-23 (1982).

Il.

The defendant then went on erial charged with the murder of

his wife, Wanda, whose body was found in the family swimming

pool at about 2:00 a.m. on October 30, 1975. (T-62-74).

Throughout the trial the defendant contested the fact that his wife

was strangled as the prosecution claimed. His medical experts

claimed that she had drowned. (T-1300, 1323, 1442, 1560). The

defendant himself took the stand and testified that he did not

strangle or kill his wife and that she was alive but obviously under

the influence of liquor the last time he saw her at 12:30 a.m. that

morning. (T-1105). The defendant also stated that he found

some pentobarbital and valium pill bottles that morning open on

the bathroom sink (T-SO1-02, 1183) and that his wife had been

depressed. (T-1070). Witnesses testified the defendant claimed

his wife had been taking pills and liquor just before her death.

(T-1089, 1679-85 ). The autopsy tests, however, revealed that Mrs.

Avcollie was not under the influence of alcohol or drugs when she

died by strangulation (T-808, 565, 571-72) and that the level of

pentobarbital (total ’2 pill) in her liver and blood as well as her

stomach consents showed she was killed before 12:30 a.m. at a

time when she was alone with the defendant, according to the de-

fendant, and engaged in a violent confrontation. (T-791, 793-95,

805-08, 880, 1100-03). No valium was found in her body. (T-

2

805-06). Other witnesses denied Mrs. Avcollie’s depression and

use of alcohol and drugs (T-1680, 1688) and testified that the

defendant was “house-hunting” (the $115,000.00 range) with his

girlfriend, her children, and his children only shortly before the

murder, (T-895-903). The defendant himself stated he was in

love with his girlfriend. (T-1063, 1146).

There was also testimony that the defendant's house was jointly

held with his wife (T-1163), that his wife had determined to

confront the defendant that evening, to get him out of the house, to

seek a divorce herself and not to reduce her standard of living in

those circumstances. (T-1679-84, 1690-93). While discussing

her reasons for the breakup of their marriage, Mrs. Avcollie stated

in reference to the defendant's well-known and multiple extra-

marital affairs that the defendant was “sick.” (T-1145-46).

Il.

At the defendant's request the judge charged the trial jury only

with respect to the crime of murder. His charge instructed the jury

that it was its function to find the facts and draw such proper in-

ferences from those facts as it might reasonably and logically draw.

(T-3-4, Jury Charge, 7/18/77). The jury was told it was the

inferences which it may draw from the evidence which would pre-

vail, regardless of what the court said to it about the evidence. (T-

2, Jury Charge, 7/18/77).

The jury was also told that circumstantial evidence involved the

jury finding facts and then deciding whether those facts forced it

logically to the conclusion that other facts exist or events occurred.

(T-7, Jury Charge, 7/18/77).

The court also instructed the jury that the defendant was pre-

sumed to be innocent until proven guilty. (T-10, Jury Charge,

7/18/77). The court instructed the jury eight times that the State

always had the burden of proving the guilt of the defendant be-

yond a reasonable doubt. The court stated that the State must

prove the defendant guilty of each and every element of the offense

3

beyond a reasonable doubt and that the burden never shifts from

the State to the defendant. (T-9-11, Jury Charge, 7/18/77).

In instructing the jury on the issue of intent the court told the

jury that intent was an element of the offense that the State must

prove beyond a reasonable doubt. The court described intent as a

mental process which may be inferred from conduct. The court

then observed that every person is presumed to intend the natural

and necessary consequences of his acts, that it is often impossible

and not necessary to prove criminal intent by direct evidence, and

that ordinarily intent can be proved only by circumstantial evidence

as the term had previously been described, (T-35-36, Jury Charge,

7/18/77).

The court next explained that finding intention is largely a

matter of inference. Apart from the testimony of the actor, the

court went on, the only method by which a jury can determine

intent is by examining the person's conduct and the circumstances

surrounding that conduct and from those infer intent. The jury

was told to draw such inferences is its privilege and its duty if the

inference is reasonable, The court then repeated it was the jury's

duty to draw reasonable inferences from the conduct of the defen-

dant and the circumstances surrounding it. The court concluded

by stating that if the jury did not find beyond a reasonable doubt

intent to cause death, its verdict should be not guilty. (T-36-38,

Jury Charge, 7/18/77).

The court went on to discuss motive and charged that motive

could also be inferred from conduct and surrounding circumstances.

( T-38-39, Jury Charge, 7/18/77).

The jury was again instructed that no burden rests upon the de-

fendant to disprove the charge, but the burden always remains

upon the State to prove the charge of murder and all the essential

elements as they have been explained to the jury beyond a reason-

able doubt. (T-40, Jury Charge, 7/18/77).

The court also repeatedly instructed the jury that if the evidence

was capable of more than one construction or interpretation which

4

is reasonable, one innocent and one guilty, it must interpret the

facts as innocent rather than guilty. (T-9-41, Jury Charge, 7/

18/77).

At the defendant's request the court then charged the jury, con-

cerning the presumption of innocence, that the law presumes that

laws are obeyed and that therefore it should find no illegal activity

until it was convinced beyond all reasonable doubt of its existence.

The court also instructed the jury the law presumes a death by

accident absent proof by the State beyond all reasonable doubt

otherwise. (T-42, Jury Charge, 7/18/77).

The court then repeated that the law never imposes upon a de-

fendant the burden or the duty of calling any witnesses or produc-

ing any evidence. (T-43, Jury Charge, 7/18/77).

The defendant took no exceptions to the charge.

SUMMARY OF ARGUMENT

1. The trial court's quashing of the grand juror subpoenas does

not require the granting of certiorari. The defendant failed to

offer to prove through the grand jurors’ testimony discrimina-

tion against a constitutionally cognizable group to which he

belonged. In the absence of any preliminary factual showing

of discrimination, the Connecticut Supreme Court correctly con-

cluded that the trial court's quashing of the grand juror sub-

poenas was proper.

2. The trial court's charge concerning intent does not require the

granting of certiorari. The Connecticut Supreme Court found

no burden-shifting, conclusive, or mandatory presumption aris-

ing from the trial court's instructions. Because this portion of

the charge constituted an entirely permissive presumption, it did

not violate the principles set forth by this Court in Sandstrom

v. Montana, 442 U.S, 510 (1979). Furthermore, this was not

a case where intent was the crucial issue or where the jury was

left only with this presumption to find intent and it was entirely

rational to give such a charge in this case.

3. The trial court's charge concerning sanity does not require

the granting of certiorari. Sanity was never an issue in the de-

fendant’s case. The defense of insanity, as defined in Connec-

ticut General Statutes Section 53a-13, was never noticed or

argued. The defendant himself acknowledged that the issue of

insanity was never raised by the defense or by the evidence.

The defendant took the stand and repeatedly denied killing his

wife. The defendant neither requested a charge on the issue of

sanity nor took an exception to the charge as given. Even if

sanity were an issue in this case, there is a serious question

whether any federal constitutional issue arises in light of this

Court's holdings in Leland v. Oregon, 343 U.S. 790 (1952),

and Rivera v. Delaware, 429 U.S. 877 (1976).

ARGUMENT

REASONS FOR DENYING THE WRIT

I,

The Trial Court's Quashing of the Grand Juror

Subpoenas Does Not Require the

Granting of Certiorari,

On May 12, 1976, the defendant filed a motion to dismiss the

indictment on many grounds. Under one such ground he alleged,

without any more specificity, that the grand jury was selected in

an unconstitutional manner denying him due process and equal

protection.

On May 20, 1976, the defendant called High Sheriff Healy

to the stand in support of his motion and elicited testimony from

Sheriff Healy that he had called the grand jury veniremen by

telephone the day preceeding the grand jury hearing. (T-14-20,

5/20/76). Sheriff Healy stated there were no lawyers on the

grand jury panel, and he was questioned at length about that

fact. (T-5, 13, 40-41, 5/20/76). Sheriff Healy testified that in

this case all the grand jury names came from lists of people who

had served on previous grand juries. (T-14-20, 21-28, 36-40,

5/20/76). Sheriff Healy's testimony was then continued until

June 3, at which time he was questioned about the telephone toll

records for the day before the grand jury hearing. (T-2-7,

6/3/76). At neither session was Sheriff Healy asked any ques-

tions about the race, color or background of the grand jurors,

some of whom Sheriff Healy stated he knew. (T-23-28,

5/20/76).

On June 3, 1976, each of the twenty grand jutors was sub-

poenaed by the defendant and appeared in the courtroom. (T-1,

29, 6/3/76).

The State moved to quash the subpoenas to the grand jurors,

and the court inquired what testimony could be expected from

the grand jurors. The defendant's counsel stated he wished to

-

question the grand jurors about the method of their selection

and other preliminary matters. (T-9, 6/3/76). Defense counsel

stated his purpose in questioning the grand jurois would be to

discover each one’s qualifications and background and to establish

that each had served on prior grand juries. (T-11-12, 6/3/76).

Defense counsel claimed that the grand jurors constituted a blue-

ribbon grand jury consisting of professional grand jurors. (T-

13, 6/3/76). He also claimed that there was discrimination

against a particular class that had served on other grand juries,

that is, members of the bar and apparently professional people.

(T-16, 6/3/76). At this time it was stipulated that no member

of the bar served on this grand jury. (T-18, 6/3/76).

Defense counsel then stated that he wished to question the

grand jurors individually as to each one’s recollection of the

charge, understanding of the charge and feeling about the defen-

dant being called as a witness. (T-22-26, 6/3/76). Each grand

juror would also be asked about his definition of hearsay and

other inadmissible evidence. (T-26, 6/3/76). When the court

stated it would not allow such questions, defense counsel then

indicated he wished to question the grand jurors about each one’s

background and to establish to what class each belonged. (T-29,

6/3/76). Defense counsel then stated it was quite obvious that

there were no non-Caucasians in the grand jury group there in

court. (T-29, 6/3/76). When the court agreed it observed all

Caucasians in the group, defense counsel stated he would inquire

into other classes not readily distinguishable which might create

a constitutional infirmity. (T-29, 6/3/76). Acknowledging that

he may well be accused of being on a fishing expedition, defense

counsel stated he knew of no other way in which he could deter-

mine each grand juror’s place of employment, occupation, wealth,

religion and church attendance. (T-30, 6/3/76). The defendant

was asked to show that any member of an identifiable group or

class to which he belonged was systematically excluded from his

grand jury, and the prosecutor observed he could not do so. (T-33,

6/3/76). Defense counsel frankly admitted he was not sure what

8

constituted a class and observed that a constitutionally cognizable

class may be attorneys, people of affluence, or Hispanic peoples.

(T-37-38, 6/3/76). No claim was made, however, that Mr.

Avcollie was of Hispanic origin. Defense counsel also stated he

would have preferred a grand jury of seven lawyers to one without

any attorney. (T-38-39, 6/3/76). He stated he wished to ques-

tion the grand jurors because some of them might be able to en-

lighten the court about the absence of an attorney on the panel.

(T-39, 6/3/76).

Defense counsel concluded by stating he wished to question the

individual grand jurors not only about discrimination but also

about other preliminary issues which he had raised in his motion

to dismiss the indictment. (T-40, 6/3/76). Defense counsel did

not specify what these other issues were, and when the court

pointed out that the remaining issues were already disposed of or

awaiting briefs, defense counsel did not respond any further.

Thereafter, the court granted the motion to quash the sub-

poenas. (T-41, 6/3/76).

With respect to the motion to dismiss the indictment, Sheriff

Healy testified at length again on June 15, 1976. He was asked

about the Sheriff's telephone toll records for the day before the

grand jury hearing. The toll records were introduced through a

telephone company employee, and thereafter the evidence was

closed. (T-117, 6/15/76). At no time was Sheriff Healy asked

a single question about the background, race, religion, economic

condition or age of these or previous grand jurors.

The defendant's counsel had stated on June 3, 1976, that his

investigator had contacted each grand juror on this grand jury.

(T-30, 6/3/76). Yet, no evidence was presented by any investi-

gator, nor were the previous grand jury lists offered for the

purpose of observing Hispanic surnames or for determining the

sex of the grand jurors.

After the hearing the defendant filed a memorandum concern-

ing the claim of grand jury selection in an unconstitutional manner.

9

That portion of his June 24, 1976 memorandum is set forth in

appendix “A” to this brief. In his memorandum the defendant

stated:

These [Connecticut] cases [previously cited]

recognize that a discrimination claim in the selec-

tion of grand jurors must be based on the systema-

tic exclusion of an identifiable class. This defen-

dant’s argument concerning the selection of the

grand jurors which considered his indictment is

really based on a different premise.

Respondent’s App. A at 2a. It may be seen that the trial judge

was correct when he observed in his memorandum of decision

dated July 26, 1976, that the defendant “does not claim that the

selection process failed to obtain or to guarantee an impartial

Grand Jury drawn from a cross-section of the community and that

there was a systematic and intentional exclusion of certain electors

of the county, rather, he claims that the High Sheriff did not select

the names from the computerized list as has been done for the last

several years. Petitioner’s App. at 9a.

The defendant, now through different counsel, complains that

he was deprived of an opportunity to establish grounds to dismiss

his indictment when the subpoenas were quashed. His argument

apparently is grounded on his later claim that he could not prove

that some still unspecified class may have been excluded from his

grand jury without calling these grand jurors as witnesses to ask

them if they had ever served with “a black Grand Juror, a His-

panic Grand Juror, etc.” See Brief of Defendant-Appellant to the

Connecticut Supreme Court at 23.

The transcript reveals, however, that Sheriff Healy, who had

selected and presented grand jurors for three and a half years

before chis grand jury, was not asked that question. Nor, was

the trial judge ever informed by defendant’s then counsel that

this was the purpose of the defendant’s calling the grand jurors

as witnesses. (T-5/20/76, 6/3/76, 6/15/76).

10

In order for the defendant to prevail on a claim of grand jury

discrimination, he must show that there was an intentional and

systematic exclusion of a constitutionally cognizable group. See

Rose v. Mitchell, 443 U.S. 545 (1979). Given the failure of

the defendant to allege any such facts at the hearing, the trial

court was correct in quashing the subpoenas directed to the twenty

grand jurors. In Rojas v. State, 288 So.2d 234 (Fla. 1973),

cert. denied, 419 U.S. 851 (1974), the Florida Supreme Court

held that in order to avoid a “fishing expedition” of broad range,

an affidavit or some preliminary factual showing of discrimination

is required before a full scale inquiry into the grand jury panel

would be allowed. 288 So.2d at 237 (citing United States v. Hoffa,

349 F.2d 20 (6th Cir. 1965), cert. granted on another issue, 382

US. 1024, aff'd, 385 U.S. 293 (1966); Windom v. United States,

260 F.2d 384 (10th Cir. 1958); 47 Am.Jur.2d Jury § 182). This

reasoning was followed in Dykman v. State, 294 So.2d 633, 637

(Fla. 1974), cert. denied, 419 U.S. 1105 (1975). In Calvo v.

State, 313 So.2d 39 (Fla. Dist. Ct. App. 1975), cert. denied, 330

So.2d 15, cert. denied, 429 U.S. 918 (1976), a Florida District

Court of Appeals relied upon Rojas and Dykman to sustain the

action of the trial judge who had denied the defendant’s request

for subpoena of those persons on the grand jury lists.

In this case, the defendant did not attempt to prove any dis-

crimination in the selection of the grand jury beyond what was

stipulated to or what he proved through Sheriff Healy's testimony.

His claim that he might possibly come up with such discrimina-

tion if allowed to trawl through a grand jury panel on a fishing

expedition justified the court’s excusing the grand jurors from

subpoena.

Also, the defendant did not allege or attempt to prove that the

grand jurors’ testimony would reveal the exclusion of any con-

stitutionally identifiable or cognizable group. In United States v.

Guzman, 337 F. Supp. 140, 143-44 (S.D.N.Y.), aff'd, 468 F.2d

1245 (2d Cir. 1972), cert. denied, 410 U.S. 937 (1973), the

court defined a constitutionally cognizable group as a definite one

11

having “a community of interest which interest cannot be protected

by the rest of the populace.”

Such a group has also been defined by this Court as a recogniza-

ble distinct class which has been singled out for different treatment

under the laws as written or applied, Castaneda v. Partida, 430 US.

482, 495 (1977), and as one requiring the aid of the courts in

securing equal treatment under the laws, Hernandez, v. Texas, 347

U. S. 475, 479 (1954). In People v. Estrada, 93 Cal. App. 3d 76,

155 Cal. Rptr. 731 (Ct. App. 1979), the California court refused

to accord such a designation to young people, blue-collar workers,

householders with less than $15,000 income or less educated

(under 12th grade) persons. In this case, the defendant's only

offer was an attempt to prove that the grand jury was comprised

of persons alike as to age, professional experience, education and

economic condition. He, in effect, made no attempt to prove the

intentional and systematic exclusion of any constitutionally cog-

nizable group.

Furthermore, with respect to state grand jury challenges, the

State submits that the federal Constitution only supports equal

protection challenges. See Villafane v. Manson, 504 F. Supp. 78,

82 n. 6 (D. Conn. 1980). However, an equal protection argument

by the defendant is without merit because he utterly failed to offer

to prove through the grand jurors’ testimony discrimination against

a constitutionally cognizable group to which he himself belonged.

See Castaneda v. Partida, 430 U.S. 482, 492 (1977).

The quashing of the grand juror subpoenas, a matter really of

state procedural law, does not require the granting of certiorari.

IL.

The Trial Court’s Charge Concerning Intent

Does Not Require the Granting of Certiorari.

The jury was told in this case that if they did not find intent

to murder beyond a reasonable doubt, they should acquit the de-

fendant. They were also instructed that intent could generally be

12

found or inferred only by finding what the defendant's conduct was

and what the circumstances were surrounding that conduct. The

inference, they were told, had to be reasonable. In this context, the

court commented that a person is presumed to intend the natural

consequences of his acts. The jury was told that the term “circum-

stantial evidence,” the ordinary proof of intent, had been defined.

At this point the court reminded the jury that it had explained

the term “circumstantial evidence.” In its previous reference the

court had explained that circumstantial evidence involved the jury

finding facts and then deciding whether those facts forced it

logically to the conclusion that other facts exist or events occurred.

The court went on to explain that intent is necessarily very largely

a matter of inference. The jury was told that they could generally

determine what a person’s purpose of intention was at a given time,

aside from that person's testimony, only by determining what a

person’s conduct was and the circumstances surrounding that con-

duct and then from those infer intention.

The charge in this case omitted the words ‘the Jaw’ presumes

and premised the comments concerning presumption with refer-

ence to inference and followed it by the same language. At no

time in the charge did the trial judge use the term “conclusively”

in reference to the presumption of intent from action. The charge

did not shift the burcen of proof to the defendant as the jury was

repeatedly told that the State always must prove every clement of

the offense and that the burden never shifts to the defendant. (T-

11, 40, 43, Jury Charge, 7/18/77). The trial judge was careful

to instruct the jury that if they did not find such an intent beyond

a reasonable doubt they should acquit the defendant.

The defendant places principal reliance upon Sandstrom v.

Montana, 442 U.S. 510 (1979), for the proposition that the

charge in this case violated due process by shifting the burden of

proof from the State to the defendant. It is pointed out that the

charge in this case, however, merely contains “general comments

by the Court upon the validity of presuming intent from action”

13

not condemned by Sandstrom v. Montana, 442 U.S. at 519-20

n9.

The charge in Sandstrom offended due process as it stated "I t]he

law presumes that a person intends the ordinary consequences of

his voluntary acts,” 442 U.S. at 517 (emphasis in original ), where-

as the charge in this case stated the jury may infer mental state

from conduct and commented that every person is presumed to

intend the natural and necessary consequences of his acts, explain-

ing that intent ordinarily can he proved by such circumstantial

evidence.

In the Sandstrom case, the jury was only te! the law presumes

intent from action and not told that they might infer that con-

clusion or that they had a choice. 442 U.S. at 515. In this case,

the jury was told that the jury could decide whether facts forced

it to conclude other facts or events occurred, and that the jury

could only generally determine what a person’s intention was by

determining the person’s conduct and what circumstances sur-

rounded that conduct. In conclusion, the jury was told if they were

not satisfied beyond a reasonable doubt that the defendant had

an intent to cause death they should find him not guilty.

The portion of the charge as given constituted an entirely per-

missive inference or presumption described and approved in Ulster

County Court v. Allen, 442 U.S. 140 (1979). Here the jury was

left to credit or reject the inference and the charge did not shift

the burden of proof. Here, as in Ulster County Court, the jury was

clearly and repeatedly reminded of the presumption of innocence,

the State’s never shifting burden of proving guilt beyond a reason-

able doubt, and that the defendant had no burden to produce any

evidence or testimony.

The instruction so given was certainly not “the functional

equivalent of a directed verdict on the issue” of intent condemned

in Sandstrom as explained in Connecticut v. Johnson, —U.S.—,

103 S.Ct. 969 (1983). Indeed, the Connecticut Supreme Court,

as shown in the Johnson case, has been sensitive to applying

14

Sandstrom in the light of the entire charge, and in this case the

Connecticut court found no burden-shifting, conclusive, or man-

datory presumption arising from the instructions. State v. Avcollie,

188 Conn. 626, 638-40, 453 A.2d 418, 424 (1982). The res-

pondent submits that Johnson underscores the correctness of the

Connecticut court’s conclusion.

Other courts have also upheld such comment where it was ex-

plained in terms of inference and when not mandated upon the

jury as a matter of law. See Gagne v. Meachum, 602 F.2d 471,

473 (lst Cir.) , cert. denied, 444 U.S. 992 (1979); United States

v. Garrett, 574 F.2d 778, 782 (3d Cir.), cert. denied, 436 U.S.

919 (1978); McInerney v. Berman, 473 F. Supp 187, 190 (D.

Mass. 1979); United States v. Chiantese, 582 F.2d 974, 976

(5th Cir. 1978), cert. denied, 441 U.S. 922 (1979).

The defendant did not except to the intent charge and did not

request any other charge regarding intent. In this case the defen-

dant had contested the fact that his wife was murdered. He himself

testified that he did not strangle his wife and that she was still

alive when she left him that early inorning an hour and a half

before her body was found. The defendant's explanation of her

death was that Wanda Avcollie drowned while under the influence

of alcohol and had taken pills from the open pill bottles on the

night of her death. His testimony was disputed by the autopsy

findings.

The Connecticut Supreme Court pointed out in this case the

central factual issue was whether Wanda Avcollie was strangled

to death. State v. Avcollie, 178 Conn. 450, 460, 423 A.2d 118,

124 (1979). The trial was outlined as a dispute between patholo-

gists as to the cause of death. 178 Conn. at 460-66, 423 A.2d at

124-27. The court stated once that fact was established there was

evidence of intent. 178 Conn. at 467-69, 423 A.2d at 127-28.

That evidence was the defendant no longer loved his wife and

wanted to leave her for someone else, Wanda Avcollie’s intention

to confront the defendant and seek a divorce, and the defendant's

15

false statements about his wife’s condition and about the open pill

bottles, no doubt to imply that Mrs. Avcollie had taken the pills.

178 Conn. at 470-71, 423 A.2d at 128-29.

The defendant's defense here was simply that his wife was

never harmed by anyone and more particularly not harmed by him.

This was hardly a case where intent was the crucial issue or where

the jury was left to rely only on such a presumption to find intent.

Once the jury found Wanda Avcollie was strangled and her body

was placed in a swimming pool the defendant's acts were not

equally susceptible of innocent motive and guilty purpose. In this

case, the instruction, not given in conclusive, burden-shifting or

mandatory terms but in a permissive context, was entirely rational

and does not require the granting of certiorari. See Ulster County

Court v. Allen, 442 U.S. at 164.

III.

The Trial Court's Charge Concerning Sanity Does

Not Require the Granting of Certiorari.

In this case the trial judge instructed the jury it could rely on

the presumption of sanity to find the defendant had the mental

capacity to commit murder unless some ‘credible evidence tend-

ing to prove the contrary has been introduced.” (T-35, Jury

Charge, 7/18/77). The court went on to state: “In this case,

as I recall the evidence, no such evidence of unsound mind has

been introduced. As I said earlier your recollection of the evidence

controls.” (T-35, Jury Charge, 7/18/77). At the conclusion of

this charge, the defendant took no exceptions whatsoever. (T-2,

7/18-7/19/77).

At the trial, the defense of insanity was never noticed or argued.

The defendant himself offered no evidence on the issue of insanity.

No requests to charge on the issue of sanity were filed by the

defendant. In fact, in his January 28, 1980 Motion for Acquittal,

the defendant acknowledged that “[tlhe issue of insanity was

never raised by the defense or by the evidence.” Petitioner’s App.

at 2la.

16

Later on appeal, the defendant claimed that hearsay statements,

introduced during the State’s rebuttal case and purported to be a

lay opinion concerning the defendant's mental condition, were

sufficient evidence to put the sanity of the defendant in issue. See

Brief of Defendant-Appellant to the Connecticut Supreme Court

at 28-29, 33-36. The hearsay statements (T-1684-86), related by

the witness Elizabeth Ann Brown, concerned Wanda Avcollie’s

opinion that the defendant was “sick” in reference to his extra-

marital affairs with Mary Jane Rado and others (T-1145-46),

for which Wanda Avcollie could forgive the defendant but not

continue to live with him. (T-1682-85).

There was no evidence, however, introduced at the defendant's

trial that at the time of the killing and “as a result of mental

disease or defect [ the defendant! lacked substantial capacity either

to appreciate the wrongfulness of his conduct or to conform his

conduct to the requirements of law.” See Conn. Gen. Stat. $53a-

13. Thus, absolutely no evidence of insanity as a defense was

introduced at trial.

It is cbvious that the defendant raised no issue of his capacity

to commit murder at his trial. He gave the trial court no notice

of the claim he now makes. The defendant took the stand and

repeatedly denied killing his wife. (T-1038-1246). His defense

urged that, in fact, Wanda Avcollie was not killed but died ac-

cidentally. The defendant made a conscious decision to try his

case in this way, and he thereby waived any claim to an insanity

defense as a part of his trial strategy. The defendant's failure to

except to the judge’s charge was another consequence of this de-

cision and based upon this omission the Connecticut Supreme Court

refused to review the defendant’s sanity charge claims. State v.

Avcollie, 188 Conn. at 638, 453 A.2d at 424.

Now the defendant asks this Court to find that the United States

Constitution requires it to review his conviction. Under Leland v.

Oregon, 343 U.S. 790 (1952), and Rivera v. Delaware, 429 U.S.

877 (1976), there is a serious question whether any federal con-

17

stitutional issue arises even if sanity were an issue in the defen-

dant’s case. See Patterson v. New York, 432 U.S. 198, 203-06

(1977).

The simple fact, however, is that sanity was never an issue in

the defendant’s case. In this case, the statements concerning the

defendant's mental condition, if they be such, were not the opinion

of an expert, nor even that of the witness herself. They were mere-

ly hearsay statements made by the defendant's deceased wile,

Wanda Avcollic. At most, the statements reflected Wanda

Aveollie’s belief that the defendant had emotional or psychological

problems related to their marital difficulties and his extramaritai

affairs. No psychiatrist, psychologist, social worker or any other

person testified concerning the effects upon the defendant of any

mental disease or condition at the time of the murder. In light of

the statutory criteria for insanity, Mrs. Brown's testimony was

simply insufficient to raise a reasonable doubt as to the legal sanity

of the defendant at the time of the crime. Under Connecticut law,

there must be substantial evidence of insanity so as to place the

issue before the jury, i.e. evidence sufficient, if credited, to raise a

reasonable doubt as to the sanity cf the defendant at the time of the

crime. See State v. Conte, 157 Conn. 209, 212-13, 251 A.2d 81,

83 (1968), cert. denied, 396 U.S. 964 (1969).

The defendant asks this Court now to hold that there was no

evidence of sanity and therefore the defendant must be acquitted

in light of this so-called insanity evidence. This argument is with-

out merit. The trial judge and jury obviously did not view the

evidence as that of insanity. The judge and jury were also present

when the defendant testified, and he gave no hint to them that he

was mentally ill at the time of the murder. In this case, In re

Winship, 397 U.S. 358 (1970), does not require the granting of

certiorari.

18

CONCLUSION

For these reasons, the petition for a writ of certiorari should

be denied.

Respectfully submitted,

THE STATE OF CONNECTICUT

Francis M. McDonald

State’s Attorney

Catherine J. Capuano

Special Assistant State’s Attorney

19

APPENDIX

TABLE OF CONTENTS

APPENDIX A -

Defendant's June 24, 1976 Memorandum re Motion

To Dismiss Indictment (Excerpt )

Page

APPENDIX A

No. 12468

STATE OF CONNECTICUT SUPERIOR COURT

VS. JubiciaL District OF WATERBURY

BERNARD L. AVCOLLIE JUNE 24, 1976

DEFENDANT’S MEMORANDUM II RE

MOTION TO DISMISS INDICTMENT

I. ARGUMENT

A. THE INDICTMENT IS INVALID BECAUSE IT WAS

RETURNED BY A GRAND JURY SELECTED IN AN

UNCONSTITUTIONAL MANNER.

In proving the allegations made by the defendant in connection

with this Argument, Henry Healy, High Sheriff of New Haven

County, testified extensively on three separate days of evidential

hearings. The defendant will not impose upon the court’s time by

summarizing all of the Sheriff's testimony, but the defendant does

claim that the following facts were proved:

1. During the tenure of Henry Healy as High Sheriff of New

Haven County, he has, at the direction of the Superior Court

summoned approximately 12 grand juries.

2. With the exception of the grand jury which indicted Bernard

Avoollie, the members of the other grand juries were selected from

computerized lists sent to the Sheriff at his request by the judicial

computer center at Middletown.

3. The grand jury which indicted Bernard Avcollie was not

selected from a computerized list, but was hand picked by the

Sheriff from a limited list of persons who previously had served

on grand juries.

la

4. All of the jurors who served on the grand jury which in-

dicted Bernard Avcollie were volunteers.

5. Of all the grand juries summoned by the Sheriff during his

tenure of office, this is the only grand jury which was ordered

convened on twenty-four hours’ notice.

6. There was no member of the Connecticut bar on the grand

jury which indicted Bernard Avcollie, although a member of the

bar was on most of the other grand juries summoned by the

Sheriff.

7. The Sheriff asked the State's Attorney for additional time

within which to summon a grand jury, but he was told to have the

grand jury convened by 9 o'clock the following morning.

The court is familiar with the existing case law in Connecticut

concerning the selection of grand juries. State v. Cobbs, 164 Conn.

402 (1973), State v. Stallings, 154 Conn. 272 (1966), and State

v. Villafane, 164 Conn. 637 (1973), all deal with the manner

of selection of grand jurors. These cases recognize that a discrim-

ination claim in the selection of grand jurors must be based on the

systematic exclusion of an identifiable class. This defendant's argu-

ment concerning the selection of the grand jurors which con-

sidered his indictment is really based on a different premise.

This defendant contends that whether or not it was required by

the Constitution or by statute, it had been the custom of the High

Sheriff of New Haven County to select grand jurors from a con-

tinually changing computer list sent out by the judicial computer

center at Middletown. In spite of this regular practice and custom,

however, that procedure was not followed in selecting the grand

jury which indicted Bernard Avcollie. No good reason has been

shown in all of the arguments which were had on this issue to

demonstrate why it was necessary or desirable to depart from the

usual practice and procedure in selecting the grand jury which in-

dicted Bernard Avcollie. Quite obviously, the procedure both in

selecting the grand jury and in the conduct of the grand jury pro-

ceedings was unique to this case. Although the usual Connecticut

2a

practice is to have the defendant in the grand jury room during

the taking of testimony, this defendant not only was excluded from

the grand jury room, but was not even given notice that the grand

jury was being convened. Compare State v. Mennillo, 159 Conn.

264 (1970). In contravention of the usual Connecticut practice

no lawyer was on the grand jury panel which indicted this defen-

dant. Compare Cobbs v. Robinson, 528 F.2d 1331 (2d Cir.

1975). The members of this grand jury were all volunteers who

had previously served on grand juries, although the usual procedure

for selecting grand jurors in New Haven County had been to use

the computer list published by the judicial computer center at

Middletown. The conclusion is unavoidable that Bernard Avcollic,

for one reason or another, has been singled out for special prose-

cutorial treatment in this case.

Any one of the departures from the usual Connecticut practice

as argued by the defendant, ought to be enough to justify a dis-

missal of the indictment. Cumulatively, the court must find that

this defendant's procedural and substantive rights have been so

seriously jeopardized by the conduct of the State that he has been

denied both the equal protection of the laws and due process of

law. It is highly significant that in the most recent federal decision

concerning the Connecticut grand jury system, Judge Robert

Anderson of the Second Circuit Court of Appeals had occasion to

discuss the procedures of the Connecticut grand jury. Judge

Anderson found that the Connecticut practice resulted in grand

juries which were independent and impartial because of certain

unique features of the system:

In addition, the independence and impartial character of the

grand jury is supported and buttressed by the following

unique features of the Connecticut grand jury procedure:

(1) Neither the State's Attorney nor any counsel for the

prosecution is allowed to appear before the grand jury. The

prosecutor remains outside the grand jury room and sends

the State’s witnesses in one at a time for examination by the

grand jury.

3a

(2) There is a practicing attorney among the member-

ship of the grand jury who usually acts as the foreman. He

leads off in the examination of the witnesses, exercises some

control to minimize the use of evidence which would be in-

admissible at the trial itself, see State v. Kemp, 126 Conn. 60,

71,9 A. 2d 63 (1939), and seeks to protect both the interests

of the person charged and the State.

(3) A person who is charged by the State with having

committed a crime punishable by death or life imprisonment

and whose case is being presented to a grand jury is permitted

at his own election to be present in the grand jury room

while the witnesses are being interrogated. He himself may

question any or all of the witnesses though the grand jurors

may not question or examine him, He may not call or present

witnesses to appear before the grand jury.

The right to be present in the grand jury room during the

interrogation of witnesses was first accorded a suspect in

Lung’s Case, 1 Conn. 428 (1815), and has been continued

by the “liberality of (the Connecticut practice” (State v.

Fasset, 16 Conn. 457, 468 (1844) ) up to the present time.

528 F.2d at 1338. The only “unique feature’ of the Connecticut

grand jury system which was preserved in the proceedings against

Bernard Avcollie was that the State's Attorney remained oveside

the grand jury room. This defendant has been undeniably preju-

diced by the departure from the usual Connecticut practice in the

other respects mentioned by Judge Anderson.

The court ought also to attach considerable significance to the

reluctance of the State to be candid concerning the abnormally

short time within which this grand jury was ordered convened, and

the State’s lack of candor concerning whether or not there was a

motion to exclude the defendant from the grand jury proceedings.

The court will remember that transcripts of earings and argu-

ments on November 24, 1975, and January 2Y, 1976, contained

conflicting statements by Judge Yale Matzkin and by Assistant

4

4a

State’s Attorney Joseph Hill as to whether there was a motion to

exclude the defendant from the grand jury room. It has been and

remains the defendant's contention that he has a right to be present

in the grand jury room unless for good cause shown the court

enters an order of exclusion.

The defendant has also alleged that the grand jury was sclected

in an unconstitutional manner because the members of the grand

jury were all volunteers of similar background, experience, age and

professional experience. The defendant was denied an opportunity

to question the grand jurors on these points in spite of his argu-

ment that State v. Davis, 158 Conn. 341 (1969) not only gives

him the right, but imposes the obligation upon the defendant to

prove his allegations by direct evidence.

Certain aspects of Sheriff's Healy's testimony concerning the

summoning of grand jurors were contradictory. The Sheriff's

recollection of the number of grand jurors whom he called, the

hours during which the calls were made, the places from which

the calls were made, all changed from time to time during his

testimony - apparently in an effort to conform to what he believed

to be the necessary requirements to validate the grand jury pro-

ceedings. The defendant respectfully submits that the direct

evidence introduced on these points to impeach the credibility of

the High Sheriff, to wit: the telephone records, contradicts the

High Sheriff's oral testimony. Again the conclusion is inescapable

that Bernard Avcollie was the victim of a concerted effort to pick

a volunteer blue-ribbon grand jury which would be sure to indict

him on whatever evidence the State saw fit to introduce in his

absence. Apparently in an effort to prevent the defendant from

having adequate disclosure of the nature of the case against him

so as to prepare his defense, the State’s Attorney unilaterally saw

to it that the defendant was not permitted in the grand jury room.

Surely the evidence adduced so far in this case indicates that prior

to the time the grand jury was convened, the State had already

made the decision to prosecute this defendant and had committed

Sa

itself to prosecution. Compare State v. Stallings, 154 Conn. 272

(1966) and Kirby v. Illinois, 406 U.S. 682 (1972).

The State's purposeful selection of a volunteer blue-ribbon grand

jury, and its singularly discriminatory manner of prosecution

against this defendant require a dismissal of the pending indict-

ment.

6a